Tuesday, March 28, 2017

Earlier this month, Pope Francis encouraged people not only to give money to those who ask for it on the street but also to stop, look the asker in the eyes, and touch him or her. His point was that physical touch is crucial to recognizing another's humanity. It says: I am present with you. I am not afraid of you.

Touch is not just a symbolic gesture; it affects the brain in ways that increase trust and rapport. It's an important aspect of our client communications that we probably don't think about enough. But incorporating it into our client meetings is as simple as remembering to shake our client's hand. Even when our client is shackled. And even when he's behind glass (ask the guards for a moment to greet the client before he is settled in the booth; they may actually give it to you). Touch (or a touch substitute) may be important, too, when a client is sharing difficult information. A touch on the arm or the back of the hand, leaning towards the client across the table, or touching fingers to the glass indicates, again: I hear you; I am present with you; I am not afraid of you.But please! No dead-fish handshakes, no queen's fingertips, and certainly not the Trump grab-and-jerk!A warm, firm (not crushing!) grip with a "hand hug" on top is a very pleasant handshake.

Thursday, March 23, 2017

You might think that it would be nearly impossible to win an appeal that a sentence is unreasoanble based on your clients unique health issues. And, evidenced by the majority in United States v. Rothbard, you may be right.

Jeffrey Rothbard suffers from a unique type of leukemia. And the medication that Mr. Rothbard needs to keep him alive costs over $100,000 a year. So after entering a plea to a wire fraud offense (while on probation for a state check fraud case), he asked for a nonprison disposition to his case. To support this request he provided evidence that the BOP could not guarantee that he would get that expensive, life saving medication. The probation office joined him and asked for a combination of halfway house, home confinement, and probation. However, the district court sentenced Mr. Rothbard to 24 months in BOP. The government was able to produce evidence that in the past, inmates with a similar condition got that medication. He appealed, arguing that such a sentence was unreasonable. The majority affirmed. And although it was not guaranteed in this case, the majority believed he was likely to get the medication and, if he did not get the medication, he could file a greivance with the BOP.

And then Judge Posner wrote a dissent that included dropping this bomb:

What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.

Besides that great quote, Judge Posner's dissent is a helpful resource for anyone trying to get a non-prison disposition for a client with health issues. He not only provides some excellent research to support such a motion, but he also recommends that the district court conduct a review that includes"neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions." Hopefully someone can use his work to get a favorable disposition in district court - winning on appeal seems unlikely.

Wednesday, March 22, 2017

Want to know if anyone else has ever argued that an Oregon arson is not a violent felony for ACCA purposes? Curious about what a statutory speedy-trial argument might look like? Need to rebut the government's "good faith" argument in response to your suppression motion? Check out the latest Issues Pending document on our website. There you can find summaries of issues currently pending in the Tenth Circuit in direct criminal appeals, as well as in counseled postconviction appeals.What can you do with this information? Grab the briefs off of PACER to read the arguments; consider staying/continuing your case if the Tenth Circuit is close to deciding a controlling issue; or just browse the issues in a relevant category so you know what to raise and preserve in your own case.The link to this document used to be on our website's front page. Since we've revamped the website, you have to dig just a wee bit to get to it. From the front page, click on the ATTORNEY RESOURCES tab in the blue ribbon:

﻿

Then click on Issues Pending (the text, not the icon) in the lower right corner:

Sunday, March 19, 2017

The Sunday New York Times led with this article about the inherent and often unnecessary danger of SWAT teams executing no-knock warrants:

As policing has militarized to fight a faltering war on drugs, few tactics have proved as dangerous as the use of forcible-entry raids to serve narcotics search warrants, which regularly introduce staggering levels of violence into missions that might be accomplished through patient stakeouts or simple knocks at the door.

Thousands of times a year, these “dynamic entry” raids exploit the element of surprise to effect seizures and arrests of neighborhood drug dealers. But they have also led time and again to avoidable deaths, gruesome injuries, demolished property, enduring trauma, blackened reputations and multimillion-dollar legal settlements at taxpayer expense, an investigation by The New York Times found.

Hudson was one of the first major blows to the exclusionary rule. More recently, Utah v. Strieff took a swipe at the judicially-crafted remedy: "[E]ven when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression."

Hudson was implicitly limited to search warrants. But what about arrest warrants? Does the exclusionary rule still apply to no-knock police home invasions executing an arrest warrant? At least one Circuit court says yes. In United States v. Weaver, 808 F.3d 26 (D.C. Cir. 2015), the court made this distinction:

An individual subject to an arrest warrant accordingly retains a robust privacy interest in the home's interior. That privacy interest is protected by requiring law enforcement officers executing an arrest warrant to knock, announce their identity and purpose, and provide the arrestee with the opportunity to come to the door before they barge in. And, where evidence is obtained because officers violated the knock-and-announce rule in executing an arrest warrant at the arrestee's home, the exclusionary rule retains its remedial force. Under Hudson's own analytic approach, then, exclusion of the evidence may be an appropriate remedy. Id. at 31.

The same is true for night-time search warrant executions. Fourth Amendment challenges are difficult but not foreclosed. As the Eighth Circuit noted in 2011, “[a]lthough this constitutional issue has received surprisingly little attention in numerous night-time search decisions, we have little doubt that in some circumstances an officer’s night-time entry into a home might be unreasonable under the Fourth Amendment.” United States v. Kelley, 652 F.3d 915 (8th Cir. 2011).

For more, see Lafave, SEARCH AND SEIZURE, § 1.6 The exclusionary rule in criminal proceedings (2015) (“Hudson is dead wrong.”) and 51 Santa Clara L. Rev. 545 (2011), Dangerous Criminals, the Search for the Truth and Effective Law Enforcement: How the Supreme Court Overestimates the Social Costs of the Exclusionary Rule.

Tuesday, March 14, 2017

The Rock Island County Jail in Rock Island, Illinois, for instance, won't let incoming women detainees wear their own underwear unless it is white. They have three choices: (1) go without until they can buy white undies from the commissary; (2) go without until they can call someone to bring in some of their own white undies; or (3) go without, period (and yes, even if the woman is on her period).What? Why? How on earth does colored underwear threaten jail security?

Well, duh, obviously because the detainees might extract ink from the underwear and use it to give themselves tattoos. That's according to the Rock Island County Sheriff, in his answer to a lawsuit challenging the white-underwear policy. The Sheriff didn't offer a single instance of this occurring, but the district court granted him summary judgment anyway.The Seventh Circuit reversed, rejecting this "meager justification" and holding that even if the Sheriff could establish a legitimate security interest, the dignity harm might be excessive in relation to that interest. The Court emphasized that jail management must take dignity into account:"Dignity serves an important balancing function alongside the legitimate safety and management concerns of jails and prisons . . . . Without the counterweight of dignity, a jail could presumably set forth security reasons to require detainees to remain naked throughout their detention or other such unseemly measures. The Constitution forbids such tactics. It requires consideration of individual dignity interests when assessing the permissibility of restrictive custodial policies."

But in many places, public defense (this includes both public defenders and appointed counsel) is overloaded and underfunded. The Atlantic reported, "America's Largest Mental Hospital is a Jail." Misdemeanor courts are broken, and function more as spiraling debtors' prisons. Juvenile justice is often an oxymoron. Children who need the most protection receive the least attention. Within the federal system, the Cardone Committee will soon issue a report about voucher cutting, remote detention, and travel and subsistence resources for indigent clients. And then there is immigration.

Celebrate Public Defense Week, especially Saturday. Check out the links above to learn more. And if you are not already a member of NAPD, consider joining.

Monday, March 6, 2017

Our focus on immigration will continue, at least until we have a better sense of the ever-changing landscape. A new travel ban is expected today but, of course, we were told that last week, as well.

The more we know about the intersection of criminal law and immigration law, the better. Everyday, we encounter more questions from clients and their families. How can I apply for asylum? A U-Visa? What's a "credible fear" interview"?

Rekha Sharma-Crawford and Michael Sharma-Crawford are experienced immigration attorneys in Kansas City. Their firm runs The Clinic, a non-profit organization that "provides free or discounted fees for legal services to qualifying individuals in immigration removal proceedings based on income levels and ability to pay."

The Clinic is offering a two-day Asylum Colloquium on April 20-21, details here or below. Please consider attending, and also consider ways to support the clinic and how to become more involved.

Thursday, March 2, 2017

We all know as federal practitioners, consecutive 18 U.S.C. § 924(c) gun counts are extremely harsh sentences. A first conviction for a § 924(c) count is at least a 5 year sentence that must run consecutive to any other counts. A second conviction for a § 924(c) is a mandatory 25 year consecutive sentence. As a result, possessing guns during two crimes of violence or drug trafficking offenses start the required sentence at 30 years. These are some of the "mandatory minimum" sentences that are often discussed as overly harsh and punitive.So what if a sentencing judge wants to comply with the text of the statute ("shall, in addition to the punishment provided for such crime of violence or drug trafficking crime") but also wants to try to mitigate the harm of such a mandatory consecutive sentence by taking them into account when deciding the sentence for the underlying crime of violence or drug trafficking offense? That is the question at issue in Dean v. United States, a case that was argued earlier this week at the Supreme Court.

Mr. Dean was convicted at trial of some robbery related offenses and, relevant to this issue, two additional § 924(c) counts. At sentencing, Mr. Dean requested a variance on the non mandatory minimum robbery counts. The district court imposed a 40 month sentence on the robbery related offenses and a consecutive 360 month sentence on the § 924(c) for a controlling sentence of 400 months. The district court stated that it did not believe it had authority to vary from the robbery counts, but if it did, the court would have imposed a 1 day sentence for a total term of 360 months and 1 day.There is good 10th Circuit authority on this question written by (wait for it) Judge (and potentially Justice) Gorsuch. as Judge Gorsuch clearly stated the issue in United States v. Smith:

Must a sentencing court studiously ignore one of the most conspicuous facts about a defendant when deciding how long he should spend in prison? After a court sentences a man to many decades in prison for using a gun during a crime of violence, must the court pretend the gun sentence doesn't exist when weighing an appropriate prison term for the underlying crime of violence?

The Supreme Court decision looks to largely come down to a question of a textual construction versus the intent of congress. Congress' intent is clear - that all § 924(c) counts should be punished harshly and be run consecutive to the underlying crime of violence or drug trafficking offense. But the text of the statute only requires the § 924(c) to be consecutive and does not limit the court in varying downward on the underlying COV or drug trafficking offense.